People v. MacAfee

• Decision Date: 24 July 1980
• Citation: 76 A.D.2d 157,431 N.Y.S.2d 149
• Parties: The PEOPLE of the State of New York, Respondent, v. Roy A. MacAFEE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 149

431 N.Y.S.2d 149

76 A.D.2d 157

The PEOPLE of the State of New York, Respondent, v. Roy A. MacAFEE, Appellant.

Supreme Court, Appellate Division, Third Department.

July 24, 1980.

James M. Kerrigan, Ithaca, for appellant.

Joseph Joch, Jr., Dist. Atty., Ithaca, for respondent.

Before GREENBLOTT, J. P., and KANE, STALEY, MIKOLL and CASEY, JJ.

GREENBLOTT, Justice Presiding.

Defendant, who was convicted of two counts of rape in the first degree (Penal Law, § 130.35, subd. 3) and one count of endangering the welfare of a child (Penal Law, § 260.10, subd. 1), primarily contends that the two rape counts of the indictment were defective and should have been dismissed. We agree.

Count one of the indictment, which alleged that at unknown times between May, 1976 through December, 1977, defendant engaged in sexual intercourse with Stephanie Lynn, a female who was less than 11 years old, was patently defective. Section 200.50 (subds. 6, 7) of the CPL provides that an indictment "must" contain "(a) statement in each count that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time" and "(a) plain and concise factual statement in each count which * * * asserts facts supporting every element of the offense charged and the defendant's * * * commission thereof with sufficient precision to clearly apprise the defendant * * * of the conduct which is the subject of the accusation." Section 210.25 (subd. 1) of the CPL provides that a count of an indictment is defective when "(i)t does not substantially conform to the requirements stated in article two hundred (§ 200.10 et seq.)", and, therefore, under section 210.20 (subd. 1, par. (a)), count one should have been dismissed.

Defendant, however, moved in the alternative for dismissal of count one or for a bill of particulars specifying the date on which the alleged offense took place. Although "(a) bill of particulars cannot, of course, serve to amend an indictment, nor can it ever cure a defective pleading" (Denzer, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 11A, CPL 200.90, p. 292) ¹, the trial court accepted the People's "answering affidavit" as a bill of particulars in response to his motion. ² The People therein set forth four specific occasions on which the alleged offenses took place, with a fifth catchall allegation that between May 19, 1976 and November, 1977, defendant raped Stephanie "at least fifteen other times". In so doing, however, the fundamental rule that "(e)ach count of an indictment may charge one offense only" (CPL 200.30, subd. 1) was clearly violated (People v. Rosado, 64 A.D.2d 172, 177, 409 N.Y.S.2d 216; People v. Brannon, 58 A.D.2d 34, 44, 394 N.Y.S.2d 974; People v. Matarese, 57 A.D.2d 765, 394 N.Y.S.2d 643). Notwithstanding defendant's acceptance of the People's "bill of particulars", the substantial prejudice resulting to defendant's ability to prepare a defense to a one-count charge, amplified into one charging four offenses with a boilerplate allegation, was manifest. Indeed, the proof adduced at trial does not reveal which incident or incidents led to the indictment, the ones for which defendant was tried and convicted, or even if some of the jurors convicted defendant of one incident while others convicted him on a second, third, fourth or others. Crimes which are independently committed and are separate and distinct from one another must be charged in separate counts of the indictment (People v. Brannon, supra, 58 A.D.2d p. 44, 394 N.Y.S.2d 974), and where, as here, a count of an indictment alleges commission of an offense on more than one occasion, the count is defective for duplicity (People v. Richlin, 74 Misc.2d 906, 907, 346 N.Y.S.2d 698; People v. Murray, 32 Misc.2d 757, 759, 224 N.Y.S.2d 864). Moreover, count one, as amplified by paragraph 4 of the People's answering affidavit, in charging that on November 26, 1977, defendant had intercourse with a child less than 11 years old by forcible compulsion, alleged two crimes (Penal Law, § 130.35, subds. 1, 3) and, therefore, violated the rule proscribing duplicitous counts in an indictment (CPL 200.30, subd. 1; Denzer, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 11A, CPL 200.30, p. 215).

Count two of the indictment alleged that on or about June of 1977, at a time unknown, defendant engaged in sexual intercourse with Tammie Jean, a female who was less than 11 years...